Over here, we’re asking a three-question, 100% anonymous survey on the topic of mandatory vaccinations. We need your opinion on the issue of compulsory vaccinations, but please, read on first…

Mandatory Vaccinations in the workplace. It’s a complex and vexed issue, but with less shifting of priorities amongst eligible vaccination groups, more access to vaccines etc., the timeline towards all businesses confronting this issue is getting shorter. As much as we’d love to keep the borders closed and stay healthy forever, the need to open up to the mainland and a few selected international routes is an economic prerequisite. Continuing a trade-before-aid theme, we can’t rely on government stimulus forever.  It does, however, make the eventual likelihood of a Delta incursion more probable. 

Against that, we can’t have an economy without public Health, and seemingly, we cant have public Health without elevated vaccination rates. It’s that simple. Mainland hospitals are full of COVID cases, the majority of which are unvaccinated. Hence, as Tasmania pushes through the 50% double vaccinated score, something else will likely be needed to move us toward the 70/80/90% we need to open up. I suspect that impetus will come from the private sector, as always; and the questions around ‘no jab, no job’ will become more persistent.

This week, two important milestones have been achieved in the fight against a Delta variant getting loose In Tassie. Yesterday, we passed through 50% of the eligible population having been double-vaccinated and earlier in the week, it became possible for anyone aged 12 or over to access a COVID-19 vaccination. With vaccine supply issues now seemingly ‘sorted’, the nation’s drive toward an 80% double vaccination rate seems suddenly more achievable. Mainland leaders’ mindset is moving from “suppression” to “living with it”, evidenced by some small restorations of personal freedoms in parts of the mainland for those who’re double vaccinated. 

Hopefully, at some point, COVID will be relegated to the same level of concern the flu gets every year. It won’t shutter businesses, alter family celebrations, or be the fuel behind angst-ridden neighbourly disputes. Someday. But for now, as we continue the climb toward Tasmania’s aspirational 90% double vaccination requirement to open the borders, we need to recognise that the Tasmanian experience has been different. Lauded as one of the safest places to be on the planet, our lives have been comparatively more straightforward than our mainland and overseas friends, especially this past winter with the ravages of the Delta variant. We’ve absolutely had fallout from decreased mainland visitation, but we’ve not had community infection now for over a year. By contrast, the eastern mainland states have been in very real, very personal lockdowns for months.  That simple fact changes everything, especially how we approach the question of mandatory vaccination.

As employers, how do we feel about imposing a mandatory vaccination requirement in the workplace? Do we even have the ability to do that? And if we do, how would we ensure it gets adhered to? The Tasmanian government has already mandated that health care workers and aged care workers must be vaccinated to enter the workplace. The list of affected roles is surprisingly large – details here. But what about in a private setting? A setting where it’s the business owner’s capital on the line, with a need to simultaneously keep the doors open, balance employee & community health, compliance requirements, and all the moral & ethical issues, while seeking to be a good employer?

Following a National Cabinet meeting on 6th August 2021, Prime Minister Morrison confirmed Australia’s policy remained that vaccines (including COVID-19 vaccines) should be voluntary and free and that in the absence of specific public health orders, an employer can only mandate that an employee be vaccinated through a lawful and reasonable direction. The Prime Minister said that ultimately employers need to consider these issues and make their own decisions appropriate to their workplace.

That’s not especially helpful…

OK, What do the legal-eagles have to say on the matter? Does an employer actually have the legal capability to compel an employee to get vaccinated in order to continue employment? An article by Sydney law firm Coors has considered it and come to the conclusion that the legal hurdles are not insurmountable, but encouragement is ultimately better than coercion. It’s a lengthy read, but it explains some of the legal reasons as to why employers might be able to take a ‘No jab, no job’ approach. 

Has anybody tried it yet? 

Yes. SPC (Shepparton) will be the first Australian company to mandate COVID-19 vaccinations for staff and visitors by November 2021. Along with some other food processing companies, Qantas, Google, Facebook and Deakin University are also considering mandatory vaccinations. SPC employees have spoken of being “steam rolled” and the younger staff voiced concerns they were ineligible for Pfizer but as of this week, that much is no longer the case. 

Companies such as Wesfarmers, NAB and Commonwealth Bank of Australia are considering carrots rather than sticks to encourage vaccinations, and some mainland tech firms are providing paid leave to employees who receive the jab.

So, there’s precedent, but only amongst some very large businesses. For small to medium businesses, it’s a little more vexed.

What to do next?

  1. Initially, a review of Worksafe Tasmania’s page on the topic here is worth a read. It concludes that for most Tasmanian businesses, mandatory vaccination won’t be a requirement, but note that as at today, the page hasn’t been updated since March 2021 which was back in ‘pre-Delta’ times.  As has been oft-quoted in media , “..Delta changes everything..” 
  2. Consider a risk management and mitigation approach, emphasising positive and facilitative messaging and decision-making, rather than negative, coercive messaging and employer ultimatums. This might include:
    1. genuine worker consultation. Encouraging and then considering employee input (possibly adjusting the phasing or the timing of mandatory vaccination), may result in greater uptake of voluntary vaccinations, or less resistance to mandated policies once introduced.
    2. early announcement of your vaccination policies (including offering vaccination leave and other leave in the event adverse side effects are suffered);
    3. utilising relevant resources to disseminate accurate up-to-date information; and 
    4. other financial and non-financial incentive offerings to staff. 
  3. Also consider the position of vulnerable employees before imposing any blanket policies which may unintentionally breach federal or state privacy, discrimination or human rights laws. Employees with disabilities or medical conditions, pregnant employees and visa holders, may have difficulty readily accessing vaccinations even if they are eligible. Even if (eventual) vaccine mandates become lawful, facilitative measures are more likely to be more effective initially. 

As you can appreciate, it’s a complex and probably inescapable decision that needs to be contemplated by business owners soon. If you’re seeking advice, we recommend that you contact any of the following Chamber members for advice.

Simmons Wolfhagen

Bishops -Barristers and Solicitors

Rae & Partners

Quartz Consulting

And a reminder: Over here, we’re asking a three-question, 100% anonymous survey on the topic of mandatory vaccinations. We need your opinion on the issue of compulsory vaccinations to inform our policy and advocacy position.

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